Constitutional Law, Lawyering

Federal Court Asked to Address 14th Amendment Effort to Bar Trump

Legal academics are divided on the new popular theory that former President Donald Trump can be removed from ballots under Section 3 of the Fourteenth Amendment. While I respect many of the academics who view this as a credible interpretation, I have long opposed it as textually and historically flawed. In addition to some exaggerated claims of precedent, I view the theory as one of the most dangerous in my lifetime. One thing, however, we agree upon: it is time for the federal courts to rule on this theory to bring clarity to the election. That may now occur in West Virginia where Attorney General Patrick Morrisey wants a federal court to throw out a lawsuit attempting to remove Donald Trump from the ballot in the state. What is most striking about the filing is the accusation of judge-shopping by advocates like John Anthony Castro in seeking to remove Donald Trump from the ballot in the state.

I have previously addressed the constitutional basis for this claim. It is, in my view, wildly out of sync with the purpose of the amendment, which followed an actual rebellion, the Civil War.

The 14th Amendment bars those who took the oath and then “engaged in insurrection or rebellion against the same.” It then adds that that disqualification can extend to those who have “given aid or comfort to the enemies thereof.”

The “disqualification clause” was written after the 39th Congress convened in December 1865 when many members were shocked to see Alexander Stephens, the Confederate vice president, waiting to take a seat with an array of other former Confederate senators and military officers.

Justice Edwin Reade of the North Carolina Supreme Court later explained, “[t]he idea [was] that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again.”

According to these experts, Jan. 6 was an “insurrection” and Trump gave “aid and comfort” to those who engaged in it by spreading election fraud claims and not immediately denouncing the violence.

Polls have shown that most of the public view Jan. 6 for what it was: a protest that became a riot. One year after the riot, CBS News mostly downplayed and ignored the result of its own poll showing that 76 percent viewed it for what it was, as a “protest gone too far.” The view that it was an actual “insurrection” was far less settled, with almost half rejecting the claim, a division breaking along partisan lines.

Nevertheless, Democrats have claimed that the 14th Amendment prevents Trump from running because he supported an “insurrection or rebellion.”

They have argued that this long dormant clause can be used to block not just Trump but 120 Republicans in Congress from running for office.

The lawsuit could offer a long needed judicial review and an avenue to the Supreme Court for a final ruling. Yet, what was most notable was this paragraph in the filing on the motives and means used by Castro:

“Plaintiff John Anthony Castro filed this lawsuit as part of a multi-state litigation effort that he dubs “Operation Deadlock.” John Anthony Castro (@realJohnACastro), X (Sept. 20, 2023, 2:17 PM), https://bit.ly/48GyE9y. Castro’s supposed operation involves filing suit after suit— roughly two dozen so far—seeking to disqualify President Donald Trump from running for election again. Castro will then “sidelin[e] and neutraliz[e] the influence of conservative judges” by “nonsuit[ing] those cases” that are not assigned to “Obama-appointed or Clinton appointed judges.” Katherine Fung, Donald Trump’s Lawyers Get Stretched Even Thinner, NEWSWEEK (Sept. 19, 2023, 11:22 AM), https://bit.ly/3S2a25B; see, e.g., Notice of Dismissal, Castro v. Henderson, No. 2:23-cv-00617 (D. Utah Sept. 27, 2023), ECF No. 14 (Castro dismissing his suit after it was reassigned to a judge appointed by President Trump); but see, e.g., In re Fieger, No. 97-1359, 1999 WL 717991 (6th Cir. Sept. 10, 1999) (affirming sanctions against attorney who had “dismissed [his] cases so that he could select the judge”). Castro evidently hopes these efforts will “completely bankrupt [President Trump] by next summer.” John Anthony Castro (@realJohnACastro), X (Sept. 27, 2023, 8:40 PM), https://bit.ly/45gxpLq.”

Castro is running for the Republican presidential nomination. Recently, the Supreme Court refused to hear one of Castro’s cases.

Castro has been open about forum and judge shopping to get liberal, Democratic judges to rule against Trump. Castro tweeted:

“The fight is far from being over. We’re going to get the liberal 9th Circuit to kick Trump off the ballot in Montana, Idaho, Nevada, and Arizona. Coupled with the 1st Circuit kicking him off the Maine ballot, there’s ZERO path to 270. The Supreme Court can deny to hear the case but appellate courts cannot. I’m still pursuing decisions in the liberal appellate courts and there’s a full blown trial scheduled for October 20 in New Hampshire and a bench trial in Arizona on October 31.”

I tend to favor broad standing rules, but Castro’s open effort to secure review from liberal, Democratic judges should offend not only these jurists but most Americans. Castro received a J.D. from the University of New Mexico and LLM from Georgetown University.

Courts have universally denounced judge shopping. Most, like the federal court in northern Illinois, denounce the practice: “No one should be able to manipulate the assignment system in order to determine in advance which judge will get a case where the assignment is by lot.”

Obviously “forum shopping” does occur. Lawyers will seek to file in the most favorable jurisdiction, including prosecutors. Yet, I have never seen a lawyer openly discussing the manipulation of filings in search of liberal judges to achieve a particular result. The filing is accusing Castro of actually withdrawing lawsuits when he receives a judge who is not reliably liberal.

Castro must realize that he is insulting these liberal judges and making this already novel challenge even more difficult. However, it is an example of using cases to appeal to the court of public opinion. Castro knows that such raw political moves will thrill many in this age of rage.

For advocates of the 14th Amendment theory, Castro could not be a worse figure to move this claim into the courts. He adds a noxious means to a novel theory to bar Trump from ballots.  Of course, this is all being done by advocates who claim that they are defending democracy but denying the ability of others to vote for one of the leading candidates for the presidency.

211 thoughts on “Federal Court Asked to Address 14th Amendment Effort to Bar Trump”

  1. JT justly criticises Mr Castro for forum shopping. But he overlooks an equally sinister aspect of Castro’s efforts: economic destruction (“these efforts will completely bankrupt (Trump))”. This is the tactic being used by the DOJ against Trump and other Conservatives and the J6 defendants. The cost of legal assistance in a city like Washington DC, or New York, is so high that ordinary citizens cannot afford it. The DOJ has almost unlimited resources. Thus it is easy to obtain “confessions” to any assortment of “crimes” to justify the political prosecutions, and then use those prosecutions to justify a new set of prosecutions.

    1. People who can’t afford a lawyer can get a public defender. Trump claims to be a billionaire.

      1. Would you have a who-gives-a-crap attitude if conservatives were intentionally driving liberal politicians into bankruptcy through lawfare?

      4. “People who can’t afford a lawyer can get a public defender.”

        For a *civil* suit? Who knew.

    2. The Biden Administration is the Enemy. There is a global jihad by Muslim militants against Jews and one organized by Biden’s FBI against Americans

      FJB

      Exclusive: Donald Trump Followers Targeted by FBI as 2024 Election Nears
      https://www.newsweek.com/2023/10/13/exclusive-fbi-targets-trump-followers-as-2024-election-nears-1831836.html

      The federal government believes that the threat of violence and major civil disturbances around the 2024 U.S. presidential election is so great that it has quietly created a new category of extremists that it seeks to track and counter: Donald Trump’s army of MAGA followers.

      The challenge for the Federal Bureau of Investigation, the primary federal agency charged with law enforcement, is to pursue and prevent what it calls domestic terrorism without direct reference to political parties or affiliations—even though the vast majority of its current “anti-government” investigations are of Trump supporters, according to classified data obtained by Newsweek.

      “The FBI is in an almost impossible position,” says a current FBI official, who requested anonymity to discuss highly sensitive internal matters. The official said that the FBI is intent on stopping domestic terrorism and any repeat of the January 6, 2021, attack on the Capitol. But the Bureau must also preserve the Constitutional right of all Americans to campaign, speak freely and protest the government. By focusing on former president Trump and his MAGA (Make America Great Again) supporters, the official said, the Bureau runs the risk of provoking the very anti-government activists that the terrorism agencies hope to counter.

      “Especially at a time when the White House is facing Congressional Republican opposition claiming that the Biden administration has ‘weaponized’ the Bureau against the right wing, it has to tread very carefully,” says the official.

  3. Here’s a nice live Grateful Dead tune “Death Don’t Have No Mercy” to go along with this topic. Roll it.

  4. The fact that these people are so desperate to stop Trump tells us just how badly he is needed.

    1. The party that is screaming most loudly about their opponents being a “threat to democracy” is the very same party that seems to have the least faith in the voice of the people. Projection, by those who constitute an actual threat.
      QED

      1. It is people like them and Hillary Clinton who see themselves above all others and want to subject us to their rule.
        It is they who are the most anti-democracy and threat to democracy.

        1. It is quite shocking that she thinks people who voted for her opposing candidate should be forced into reeducation camps. How does that kind of bonkers rhetoric not get called out as beyond the pale by the regime media?

          1. OldManFromKS,
            MSM just smiles and bobs their heads in adoration like a trained seal.

          2. Oldman- “How does that kind of bonkers rhetoric not get called out as beyond the pale by the regime media?”
            +++
            Because they would like to see it happen.

            Follow the SBF trial to see what morally depraved creatures are being nurtured in our elite universities. Journalism schools are no exception.

      2. Trump lost the popular vote twice. It’s the people who want to keep the EC who have the least faith in the voice of the people.

        1. Seems you’re ignorant of the reasons the Founding Fathers decided presidential elections should be decided by the EC.

          As for him losing the popular vote, that’s a red herring. The presidential nominees from both parties design their campaign strategies around maximizing EC votes, not popular votes. If we elected the POTUS by popular vote, the campaigns would have been significantly different, and it is impossible to tell who would have won.

            1. Not in 2016. That’s the one where people were saying, “Oh but Hillary won the popular vote” as if that had any relevance to anything.

          1. There is no national popular vote that bears.

            There are 50 State popular votes.

          2. WOW, COUNTIES! Sweet! Why pick that arbitrary geographical division? What about zip codes?

  5. Funny how Turley leaves out the part where trump’s lawyer wrote in the brief the 14 amendment does not apply to trump. Blue wrote the presidential oath to ” preserve, protect and defend the constitution does not say to “support” as does the 14th amendment. The BS didn’t work, the judge rejected the attempt. trump loses in court again, no wonder why he wants to terminate the constitution, he wants the laws to be what he says it is.

    1. Lawyers are required to defend their client, and judges are today required to lie so demoncrats don’t show up at their homes and illegally harass them and also send crazies to murder them and their families.

    1. Confirmed that Democrat controlled citizens are experiencing high rates of violent crime.
      Same shite, different day

      ✊🏽

  7. Aren’t we missing a crucial fact? Trump isn’t on the ballot–the electors are.

  8. Trump lead an effort to commit crimes to illegally overthrow the results of an election and install himself as an unelected President. This is undeniable. Had he succeeded it would have been the end of the US as a democracy, for the foundation of a democracy is the ability of the people to elect their leaders.

    Of course he would be disqualified under the 14th.

    1. I just can’t see my way to your comments. You have already convicted Trump and his supporters when the polls show your opinion is in the minority.

      1. Comments like yours, Upstate, reflect the problem I have with Turley’s article. Whether an “insurrection” occurred is irrelevant to what percentage of the public deem it as such.

        Where, legally, is public opinion are prerequisite for determining whether an insurrection for Section 3 of Art. XIV purposes has occurred? (It is not.)

        Polling numbers are a distraction from the legal inquiry. The LEGAL challenge was the subject of the article, not how people feel about it.

        1. The legal challenge is a fraud and a joke. Any adult who doesn’t understand that is not worthy of representing anything in a courtroom.
          Those who invented the phrase clown world are spot on, a few more phrases to describe the lying idiocy people like you support are on the way.

    4. Another lying lunatic who is 100% incorrect. Whatever, get ready to cry some more, 2024 isn’t that far away.
      Wow I denied what couldn’t be denied.
      I am a great man who always goes far above and beyond what others claim is impossible.

  9. The 14th Amendment also says Congress has the power to enforce its provisions “by appropriate legislation” (Section 5). Congress has done so by making engaging in a rebellion or insurrection a federal crime (18 U.S.C. §2383). Now that Congress has acted to enforce Section 3, it seems to me that a conviction under Section 2383 is a necessary predicate to invoking ineligibility under Section 3. If the professor or Darren see this, what is your opinion on this?

    1. I should add: Section 2383 also makes a person convicted of that crime “incapable of holding any office under the United States.” In this way it directly implements Section 3 of the Fourteenth Amendment.

      1. While I found Trump’s well-advertised ‘Stop the Steal’ rally a potentially impeachable offense, under the circumstances, I have never considered it criminal.

        People, including Trump, have a right, if not an obligation, to protest the results of elections in this country (lord know I do!), but holding mass protests on the steps of congress was a bit much and over the top.

        Also thought Trump’s J6 acquittal appropriate given the circumstances. .. which would seem to make conviction of a ‘crime’ the only constitutional remedy to Trump running for office?

        *in any case, everything is relative: Job #1 is to get rid of Joe Biden et el .. . before they kill us all!

        1. Trump was POTUS at the time.
          We have so many retards in the USA, so many liars and con artists and ignorant rubes we can expect crazy talk and crazy interpretations everywhere.
          People have generally no sense of honesty, they are a leaf in the wind screaming loudly.

          TRUMP WAS PRESIDENT ON JANUARY 6TH. That’s the end of it. Congress had their chance to act, and they did not, or one can say their actions fell short.
          What we do have is a “legal mental problem” since the entire nation is driven by lying lawyers and run by lying lawyers, all sorts of BS gets passed around as valid, because as we know they should argue for “their side” or their client, so they do, at a national level now not inside courtrooms, or inside courtrooms while judges loves the attention for cases that should be tossed when the judge first sees them. This makes their fellow lawyers poor and their jobs much harder facing real cases.
          It’s a lot more fun to pose and smile and suck up accolades for years if you rule to strip Trump of all his assets on your own total fraud. Doesn’t matter you’re a liar and judicial hack. You will bask in the glory from the other lying fools till the day you die.

          Corruption isn’t just the police and congress and mayors and the government contractors, it is breathtaking in the judicial branch as well. Not as well covered, they want people to “live by the edicts of the courts”.
          Well, they blew that.

          How many have they had to let off and out of death row as DNA blew the former certainty apart… it’s all a sick joke.

    2. A few notes:

      1) For the non-lawyers out there, there is a standard rule of statutory construction, which regards the specific to overrule any potentially conflicting general language. Here, you have offered general language in a separate section of the 14th Amendment. However, there is specific language, which overrides its applicability to Section 3: “But Congress may by a vote of two-thirds of each House, remove such disability.” If Congress, through “appropriate legislation” has carte blanche to enforce Section 3, then what is the rationale for adding this final sentence? Can Congress pass a law requiring only a majority of each House to remove the disqualification? Of course not, which is why the “appropriate legislation” language of Section 5 is not entirely dispositive.

      2) Secondly, even if Section 5’s enforcement language is applicable to Section 3, there is no legislation that clearly applies. You refer to Section 2383, which defines criminal rebellion or insurrection, but there is no requirement in Section 3 that “insurrection” must refer to criminal insurrection. Think of this way, if we were discussing “fraud” rather than “insurrection,” would a criminal fraud statute be the only way to interpret this statutory language, or could a court consider civil fraud? By reading the word “criminal” into the plain language of Section 3, you are changing the actual text of the provision. Therefore, without any legislation, which directly regulates Section 3 of the 14th Amendment, Section 5’s enforcement clause is irrelevant to the analysis.

      1. Anonymous – You suggest that Section 5 does not apply to Section 3. But Section 5 states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” “This article” is the forgoing four sections. The language you quote from section 3 merely means that the disability (“bar”) established by article 3 can be “forgiven” in specific cases by a supermajority of Congress members. It is a case-by-case op-out, available only to Congress. It does not suggest in any way that Congress is prevented from otherwise enforcing the bar created by section 3. The difference between these sections is a general law (definition of the bar) compared to the privilege of assembled Congress to carve out exceptions therefrom. No conflict whatsoever.

      2. Yeah, I agree with Edward that the words – But Congress may by a vote of two-thirds of each House, remove such disability – refer to specific cases where someone was disqualified in some way. The 2/3 vote is done on a case-by-case basis. No other meaning makes sense.

        As for your second point, Section 2383 clearly applies. Its language tracks Section 3 of Amendment XIV. I do agree with you that Section 3 does not affirmatively require Congress to predicate disability on a criminal conviction. My point is that that is how Congress has chosen to enforce Section 3 as authorized by Section 5. Now that Congress has chosen that method, it governs in all cases until Congress amends or repeals the statute.

  10. The first judge shopping case I was made aware of was the Japanese internment camps. I’m all for getting money from the government, but judge shopping, withholding evidence until after the case was decided, and presenting a false history of events. This pattern has been repeated over and over again.

  11. First time I’ve seen an insurrection where the only armed individuals were the police guarding the Capitol.
    (Note the irony that this country has the 2nd Amendment and many of those present probably owned firearms.)

    That’s the key point.
    Even the FBI said it wasn’t an insurrection.

    2. Eventually if you fart upwind of a demoncrat they will claim you’re a murdering insurrectionist microaggression nazi who tried to gas them to death, a traitor to the people’s of the world, and deserve prison for life. Then they will post a news story about why the southern rebellion that loved slavery “had gas and bloating” because of the type of beans in the south the slaves worked in the fields, and declare that proof of your crime.

  12. The nation is involved in two wars, our border wide open to any and every insurgent, our economy in the s*^#*^, strategic oil supply at its worst, fuel prices rising, constitutional rights attacked on a daily basis and crime where to start with that one?
    Oh yea stop a guy (by any means) who kept the nation safe and prosperous for anyone willing to work and obey the law. Don’t let Americans decide who should hold office.

  13. First- if they proceed to the Scotus I think they will rule in the context of history and intent of the 14 th amendment as they have also done with the 2nd amendment. Most deserters and confederates have been pardoned in the past but that does not bear on this.
    I did not realize that a seditious conspiracy conviction of oathkeepers or proud boys would apply to Donald Trump who raised legal objections but took up no arms and there has been no connection of DJT to either group.
    Also if we implicate DJT because the oathkeepers and proud boys are supporters then we must also implicate the democratic party whose main power was in the confederacy pre and post war as well as woodrow wilson bringing jim crow laws to the federal government, as well BLM and Antifa who are progressive and marxist democrats and whose destruction of billions of dollars in 2020, as well as the democratic mayors and governors and district attorneys aided and abetted their cities’ destruction with their inaction. I mean we should be fair and complete should we not.

  14. There is a politician who should be banned from seeking public office. She encouraged the rioting and murder when she said that the rioting was not going to stop and should not stop. Fomenting violence is not permitted by the Constitution but Kamala Harris said that even more violence should continue. I suppose it’s a mute point because even Democrats don’t want her on the ballot. We all know that there are only two reasons that Joe Biden appointed her.

  15. I wouldn’t be surprised if John Anthony Castro files an emergency motion somewhere in the United States claiming that President Trump has been identified as inciting insurrection against Gaza City and the Palestinian people for his long-standing support of Israel. I’m sure that New York Judge Arthur Engoron would be ok with that.

  16. I see Fantasy Friday has started early.

    Of course the American people should be denied their democratic right to elect Trump for President. He’s an existential threat to our democracy and there is no better way to protect our democracy than abandoning it.

  17. Turley says January 6th wasn’t an “actual rebellion” which might suprise those of us who have watched the convictions of the mid-level planners like the heads of the Oath Keepers and Proud Boys. The top-level planners may yet see justice, we will see. I don’t believe the 14th Amentment is the right tool to keep Trump off the ballot. I’d prefer to see his multiple court cases concluded prior to the election so we can see if America want’s to see a convict elected to the Presidency or whether he’s not found guilty but merely toxic.

    1. Hey enigmainblackcom, an insurrection takes over cities, sets them on fire and kills their citizens. I refer you to the Black Lives Matter so called mostly peaceful protest. I see that you hate some convicts and support some convicts. The kind that burn black businesses and shoot people in the streets are the ones that you support.

    2. You can not relay on an election to keep out a guy who has already committed crimes to illegally overthrow an election.

      1. No I can’t rely on election results because so many people don’t care about Trump’s crimes, they just hate the same people he does so he’s their guy. I still prefer elections to keeping Trump off the ballot which seems awfully subject and has the potential for great abuse, like this country has done before.

    3. “Turley says January 6th wasn’t an “actual rebellion” which might suprise those of us who have watched the convictions of the mid-level planners like the heads of the Oath Keepers and Proud Boys.”

      Which person was convicted of insurrection? None. If you were in school you would fail the test and not graduate.

      1. in·sur·rec·tion
        /ˌinsəˈrekSH(ə)n/
        noun
        a violent uprising against an authority or government.
        “the insurrection was savagely put down”

        https://apnews.com/article/stewart-rhodes-oath-keepers-seditious-conspiracy-sentencing-b3ed4556a3dec577539c4181639f666c
        https://www.justice.gov/opa/pr/jury-convicts-four-leaders-proud-boys-seditious-conspiracy-related-us-capitol-breach

        If you wish to whine that secitious conspiracy and insurrection are somehow vastly different, feel free.

  18. 4 oath keepers were convicted of seditious conspiracy. Why did this post not mention that?

  19. The Left-Wing DEMS/anti Trump Republicans are of the school and beliefs and teaching of Left-Wing Radical theories of Lawerence Tribe and Hillary Clinton. Yes Federal/Supreme Court needs to come out and Just SAY NO to these radical lawsuits.

  20. Jonathan, you knew They had to try. Seems its there so why not put it on Trial.
    It is the creating ‘something’ out of Thin-Air, which is the fashion in the parlance of Our time.
    Sound Reasoning has gone out the window, The Higher Power of the Constitution will test the claim and deliver Us from Evil.
    -Brighter Minds Will Prevail-

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